FEDERAL COURT OF AUSTRALIA

MZYBY v Minister for Immigration and Citizenship [2009] FCA 1350

MZYBY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 542 of 2009

NORTH J

9 november 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          Before the Court is an appeal from orders made by the Federal Magistrates Court on 25 February 2009 dismissing an application for review of a decision of the Refugee Review Tribunal. On 23 July 2008, the Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, made on 23 May 2002, not to grant the appellant a protection visa. 

2                          The appellant is a citizen of Lithuania, born in November 1968.  He travelled to Australia on 26 September 2000 to participate in the Olympic Games Welcome Program.  On 16 March 2001, he returned to Lithuania, later returning to Australia on 21 June 2001. 

3                          Shortly after his return, on 18 September 2001, he applied for a sports visa as a rugby coach.  On 30 January 2002, his application for a sports visa was refused. 

4                          On 22 February 2002, the appellant applied for a protection visa.  His application has been heard by the Tribunal on two prior occasions.  The decisions of the Tribunal of 24 July 2003 and 16 February 2007 were both set aside on appeal.  On each of those occasions, the decision was preceded by a hearing.  A further hearing was held on 17 June 2008, and it is this hearing which gave rise to the present decision under appeal. 

            The Decision of the Tribunal

5                          The decision of the Tribunal, so far as is relevant to this appeal, outlined the material before it, including the departmental files encompassing the original visa application.  The decision also:

·          described material provided to the Tribunal and letters sent by the Tribunal and relevant responses in relation to the two prior hearings;

·          indicated that it had regard to the summary of evidence given by the appellant as recorded in the two prior decisions; 

·          outlined evidence given at the hearing on 17 June 2008 by Mr Barry Moshel and the appellant;

·          recorded that, following the hearing on 20 June 2008, the Tribunal sent a letter, pursuant to section 424A of the Migration Act 1958 (Cth), inviting comment on potentially adverse material;

·          outlined the material and submissions provided in response by the appellant on or about 15 July 2008; and

·          set out its findings and reasons.

6                          In the original visa application, the appellant claimed, as outlined (at [26]) of the Tribunal decision:

…that he left Lithuania because “I was helping my friend Paulius address issues related to some companies which sell Lithuanian girls in Asian countries (in Arabic countries, as well). In March 2001, I have visited Lithuania and went to some media outlets to tell them about it. For three months I have been in my country. I was beaten up by the police and threatened with false charges. They let me go but warned me in this regard”.

7                          And further (at [28]) that:

[h]e would be harmed because “I was kind of a “whistleblower” in regard to the forced prostitution and the authorities (some very high placed officials). If they are to go to the courts or further, it could expose the total corruption which permeates all layers of Lithuanian authorities”. The authorities of Lithuania violate human rights. “It happened to me and would happen again if I go back. They persecute people, they persecute – not defend”.

8                          At the hearing, the appellant claimed that he worked as a bodyguard for business people and politicians in Lithuania.  He had been involved in politics himself.  He heard that politicians were involved in illegal drugs and selling Lithuanian women for prostitution.  In approximately June to August of 2000, he claimed to have made eight to ten tapes of conversations relating to these matters.  In September 2000, he said that he gave copies of the tapes to a journalist whom he had known since 1991, and whom he trusted.

9                          On 1 or 2 April 2000, shortly after he returned to Lithuania from Australia, the appellant claimed that he was imprisoned for five or six days by police searching for the tapes.  He was beaten, his nose was broken and he suffered bruises.  After he was released, two strangers approached him, stabbed him and told him not to take any action.  He had to undergo surgery as a result of this attack.  Shortly thereafter, on 10 April 2000, he said he received a summons to attend the police station for interrogation.  At the interrogation the police again demanded the tapes.  He said he feared that if he were to return to Lithuania he would be targeted by the authorities. 

10                        The reasoning of the Tribunal is contained in a section headed, ‘Findings and Reasons’.  At [119], the Tribunal said:

                      In consideration of the evidence as a whole and for the reasons outlined below, the Tribunal finds that the applicant was not a credible witness. Whilst technically the Tribunal was not required to conduct a third hearing as the applicant has had two previous hearings before two different Members, given that the applicant’s credibility has been at issue, the Tribunal considered it fair and appropriate to conduct a third hearing in order to give the applicant a further opportunity to put his case in full before the Tribunal. The Tribunal conducted a relatively lengthy hearing and the Tribunal is satisfied that the applicant has fabricated the essential aspects of his claims in order to support the application for a protection visa. In the course of the hearing on 17 June 2008, the applicant was not an impressive witness. His evidence in relation to his central claims was overall vague and lacked significant details raising doubts about his claims.

11                        In support of this conclusion, the Tribunal pointed to a number of examples where it said that the appellant’s claims were vague or lacking in detail. These included the claimed discrimination experienced by the appellant in finding work, the dates of his imprisonment, the date on which the police raided his house and the date he received the summons to attend for interrogation.  The Tribunal also expressed doubt that the appellant would have been summoned so shortly after having been detained and that the journalist would have breached his trust if he had been a person in whom the appellant had confidence.  In an important passage at [126], the Tribunal said:

            The Tribunal asked the applicant if he has any copies of the alleged tapes. He said he has the originals in Lithuania. The Tribunal asked him why he had not provided any copies to either the Tribunal or the Department. The Tribunal noted that such evidence would be fundamental evidence and it is difficult to understand why he has not provided any such evidence. The applicant stated that because had he attempted to bring the tapes to Australia, he would have been detained. He said the tapes are hidden in Lithuania but his brother knows their whereabouts. He said the consequences may have been serious, however he would consider whether it would be possible to provide them to the Tribunal. The Tribunal notes that the applicant has had many years to provide tapes and it is odd that he has not done so, particularly given his evidence that the originals are from Lithuania. He said he has been thinking for many years about getting the tapes into Australia but he thinks there is a risk, equivalent to a death sentence. The Tribunal is not persuaded, especially when he has provided other evidence that could be ‘sensitive’ as the two Summonses. The Tribunal considers the tapes (if they exist) to be one of the most significant pieces of evidence, if not the most significant, that the applicant could provide. He has had many years to provide such evidence and the fact that he has not, indicates to the Tribunal that there are and/or there have never been any such tapes, which is the central basis for the applicant’s claim.

12                        The Tribunal then embarked on a lengthy, detailed and thorough examination of the reason for the appellant’s failure to include significant aspects of the claim in his original visa application.  The Tribunal rejected the appellant’s contention that the omissions were the fault of the appellant’s first migration agent.  It reasoned at [140], [141] and [143], that:

The allegations the applicant made against Ms Ross are serious; he is essentially suggesting potential misconduct on the part of Ms Ross.  Those are very serious allegations that are not supported by the evidence before the Tribunal.  There is no evidence before the Tribunal that the applicant had complained to the relevant authorities (such as MARA) about Ms Ross.  The Tribunal is not persuaded by his explanations in response to the s.424A letter, namely that he never complained about Ms Ross because it never occurred to him that there were avenues, but he did however mention at each Tribunal hearing that he had given Ms Ross all the information and that the forms were completed by her.  “I realise in retrospect that there is a case and I could have complained and that in fact if the matter had been properly handled at the outset I would not be in the position I am now, having to justify the situation … I am not keen on getting anyone into trouble but I do recognise that I do have a case of mismanagement by the agent.”

The Tribunal is of the view that the making of unsupported serious allegations raises doubts about the applicant’s own credibility and suggests a willingness to fabricate serious allegations for perceived benefit and/or convenience.  The Tribunal has noted the applicant’s comments in response to the s.424A letter, namely that when he looked at the forms and the signatures, he felt that he did not recognise one of his signatures.  However, as noted earlier, all the signatures in the application are remarkably similar to the applicant’s signature.  The Tribunal has also noted the applicant’s agreement with the Tribunal that the signature is similar to his but given the passage of time, “I cannot be certain and as such I would prefer not to pursue this point at this stage”, which indicates to the Tribunal that the applicant has made serious unfounded allegations which he continued to press up until the hearing in June 2008 and to say that now he is uncertain given the passage of time (a few weeks after the hearing), does not explain the persistent argument that all of this happened because of his advisor who signed and completed the application. 

In consideration of the evidence as a whole and given the above-noted concerns, the Tribunal is not satisfied that Ms Ross had completed or signed any parts of the application for a protection visa.  But even if the Tribunal were to accept that Ms Ross completed the form (but not signed it), ultimately, it was the applicant’s responsibility to ensure the accuracy of the information provided.  The evidence before the Tribunal leads it to a confident finding that the applicant signed all the relevant parts of the application for a protection visa.  In consideration of the evidence as a whole, the Tribunal is satisfied that excluding a number of significant claims at the primary level, raises serious doubts about the veracity of the applicant’s claims and his credibility generally.  Essentially, the Tribunal is satisfied that the fact that the applicant did not make at the primary level the substantial new claims that he later made at the review stage suggests fabrication of claims.  Furthermore, the Tribunal is of the view that the claims that the applicant made in the application for a protection visa are vague and lacked important details.

13                        The Tribunal then said that the fact that the appellant first applied for a visa as a rugby coach, and not for a protection visa cast doubt on his claim to a fear arising from the alleged stabbing and detention.  The Tribunal also regarded the delay between the appellant’s return to Australia in June 2001 and the lodgement of the application for a protection visa in February 2002, as raising doubts about the genuineness of the fear he claimed.  Under the heading, ‘Findings on the Applicant’s Claims’, the Tribunal said (at [148]):

In consideration of the evidence as a whole and given the above concerns, the Tribunal finds that the applicant is not a credible witness. For these reasons, the Tribunal does not accept any of his central claims or those consequential to those claims.  

14                        The Tribunal then outlined its consideration of what is described as the corroborative evidence provided in support of the appellant’s claim. This included a letter from a doctor, referring to an attack on the appellant’s brother on 9 May 2008 and a sympathy notice referring to the death of the journalist. The Tribunal commented on this material at [149]:

The Tribunal’s concerns about the applicant are significant and the documents do not outweigh the Tribunal’s concerns about the applicant. Consequently, the Tribunal does not give the documents weight as corroborative evidence of the applicant’s claims. Furthermore, and as discussed above, the applicant has not provided copies of the alleged tapes, despite saying that he has the originals in Lithuania. The applicant has had many years to provide tapes which the Tribunal considers (if they exist) to be one of the most significant pieces of evidence, if not the most significant, that the applicant could provide.

15                        The Tribunal then separately dealt with the medical report of Dr Myers dated 15 April 2008, which concluded that the appellant’s stab wound was unlikely to have been self-inflicted.  The Tribunal stated (at [153]):

The Tribunal respects the opinions expressed by both Dr Usatoff and Associate Professor Myers.  On the basis of the medical evidence, the Tribunal accepts that the applicant had suffered a stabbing injury for which he has received treatment, however, in consideration of the evidence as a whole, the Tribunal does not accept that the injuries occurred in the claimed circumstances or for the claimed reasons.

16                        Finally, the Tribunal concluded (at [156]):

In consideration of the evidence as a whole and given the adverse credibility finding, the Tribunal does not accept that the applicant has recorded any tapes of sensitive conversations between officials and or any other party, or that he has any recordings of any such conversations, or that he had given any such tapes to a journalist called [journalist’s name], or that the journalist had done anything with any such recordings, or that the journalist suffered any harm (including his reported death) related to any action with the recordings, or that the applicant or any member of his family has been threatened or suffered any harm related to the recordings, or that the applicant has ever been imprisoned (formally or informally) by the Lithuanian authorities, or that he has ever been summoned, questioned or interrogated or beaten by the Lithuanian authorities for any reason, including but not limited to any alleged recordings, or that the applicant was stabbed because of any connection with the alleged recordings, or that his house was raided, or that the applicant was discriminated against for reason of actual or imputed political opinion, or that he was a member of any political party, or that he was involved in any activities (actual or imputed) that has led or could lead to any harm, or that the applicant is of any adverse interest to the Lithuanian authorities. 

17                        The appellant filed an application for review in the Federal Magistrates Court on 2 September 2008.  The Federal Magistrate rejected the grounds of appeal.  The same grounds are now relied upon in this Court and the appellant contends that the Federal Magistrate erred in failing to uphold each of the grounds.  Each of those grounds will now be addressed. 

Consideration

18                        Grounds one and three allege that the Tribunal failed to give the appellant a proper opportunity to give evidence and present arguments and/or denied the appellant procedural fairness in two respects. 

19                        First, because of the Tribunal’s failure to adjourn the hearing.  On 5 June 2008, the appellant’s then migration agent sought an adjournment in order to give further information concerning the death of the journalist.  The Tribunal did not grant that adjournment but, apparently, indicated that the matter would be addressed at the hearing.  Then, on the day before the hearing, the appellant’s migration agent withdrew and indicated that she could not attend the hearing because her registration had been cancelled.  The hearing was conducted by video link through an interpreter.  The Tribunal and the interpreter were in Sydney and the appellant was in Melbourne.  The transcript records the following exchange with the Tribunal member, Ms Younes:

INTERPRETER:   I just wanted to let you know that it was only yesterday that it came to my attention that my agent is not going to represent me.

MS YOUNES:      That’s when it came to our attention as well. We got a phone call very late in the afternoon yesterday. I think it was about 4.00-4.30 in the afternoon and she rang and advised that her registration had been cancelled. As such she would no longer be acting for you. Sorry? Did you want to say something?

INTERPRETER:   I am a bit concerned and I am a bit worried about it because there are lots of documents that I asked her to translate and she also knows my story. So I’m a bit concerned whether I need to find another adviser to represent me.

MS YOUNES:      I can understand your concerns and I can’t give you advice as to whether you should brief another adviser. Ultimately it is indeed my responsibility to ensure that you have had a fair opportunity to put your case in full before the Tribunal. As you would appreciate, this case has a long history and I’m sure you know that, [appellant’s name], and you’ve had various advisers acting for you in the past.

I wouldn’t want to undermine any work that anyone has done for you but ultimately in my view the case has been put in full before the Tribunal. This is the third time that it comes to the Tribunal as you would appreciate. My initial assessment is that you have had ample opportunity to put your case in full before the Tribunal over the last few years. We will talk about this issue further if and when the need arises. Is there anything you would like to say?

INTERPRETER:   I am a bit concerned and in a bit of shock about the fact that you are not going to be aware of some new evidence that was presented to my ex-agent recently and that I would have no opportunity to present these documents in front of this Tribunal although the case has a long history.

MS YOUNES:      I am not saying I don’t want to receive any further documents. I am more than happy to receive any documents that you wish to provide in support of your claims. I also would like to say to you that technically, [appellant’s name], given that you have had two hearings in the past I was not required by law to conduct a third hearing. I felt that, given that your credibility has been at issue all along, I wanted to offer you a third hearing for me to assess your credibility as I see appropriate.

20                        In this exchange, the Tribunal member recognised and expressed the need for a fair opportunity for the appellant to put his case.  She took into account the history of the application and left open the possibility of dealing with any actual problem which might arise.  The appellant did not mention the issue again.  The Tribunal gave the appellant the opportunity to file further documents and submissions after the hearing. 

21                        On 15 July 2008, the migration agent then acting on behalf of the appellant, filed a number of documents including the document relating to the death of the journalist, Dr Myers’ report and a document relating to the alleged assault on the appellant’s brother, together with a further detailed written submission.  In addition, the solicitor then acting for the appellant, Mr Barry Moshel, gave evidence to the Tribunal in which he recorded his recent instructions from the appellant on the attack on the appellant’s brother and the death of the journalist.  Although he was not at the hearing as a legal representative of the appellant, but rather as a witness, it is unlikely that he would have stood by if he thought that the appellant was being prejudiced by the process.  As pointed out by Mr Krohn, who appeared as counsel for the appellant, Mr Moshel left the hearing before it was concluded but, nonetheless, was present at the beginning when the issue of the postponement was discussed. 

22                        Additionally, the appellant himself at no stage directly asked for the proceeding to be adjourned, rather, he voiced some worry about the late withdrawal of his migration agent.  In my view, there was no denial of procedural fairness or a fair opportunity to be heard by the Tribunal proceeding with the hearing in the way in which it did.  The Tribunal had regard to relevant considerations and made a fair and rational decision.  There is, even now, no evidence that the appellant was prejudiced by the matter proceeding.  In my view, this ground is hopeless and must fail. 

23                        The second aspect of this first set of grounds relates to the treatment by the Tribunal of the failure of the appellant to produce the tapes.  The appellant’s contention set out in paragraphs [42] and [43] of his written submissions was as follows:

42.     The Tribunal did not give the appellant an opportunity at the hearing to give evidence and present arguments relating to a central and ultimately critical issue arising in relation to the decision under review: namely whether the tape recordings which the appellant claimed to have made never existed. While the Tribunal discussed the use of the tapes at the hearing, it did not say to the unassisted appellant that the Tribunal might believe there never had been any tapes made by him. Nor did the Tribunal put this matter for comment in its letter of 20 June 2008.

43.     The Tribunal’s ultimate rejection of this claim was the fundamental reason for the decisions

24                        The oral submissions made by Mr Krohn were to the same effect.  The subject of the tapes was dealt with at the Tribunal hearing in the following exchange:

MS YOUNES:      I will consider that further. Thank you. Now, have you got any copies of those tapes?

INTERPRETER:   Yes. I have original.

MS YOUNES:      Where are they?

INTERPRETER:   In Lithuania.

MS YOUNES:      I’m sorry?

INTERPRETER:   In Lithuania.

MS YOUNES:      Why have you not provided any copies of those tapes?

INTERPRETER:   Who to?

MS YOUNES:      To the Tribunals, or to the Department?

INTERPRETER:   I didn’t take those tapes because if I had attempted to take them I could have been detained. That’s why I made sure that they are very well hidden. My brother knows about where they are hidden and I didn’t want to risk because if I made a mistake there could have been some consequences, and look at what happened to the journalist; what happened to my brother. So perhaps it is possible to organise bringing them over here.

MS YOUNES:      Sorry, if I may just comment on that. You have had about seven years to prepare your case in full. The tapes, I would have assumed, were very significant evidence that could have corroborated your claims. You have not provided those tapes, or any copies of them. [Emphasis added]

INTERPRETER:   Please note that I’ve been thinking for many years about a way to get those tapes over here. I’ve been thinking about sending a person, for example, to get them, but every time I was thinking it is a risk for someone and I’ve been thinking, who can possibly do it for me? If it was a brother, father, that would probably have been equal to a death sentence. I understand those tapes would be significant evidence in my case, but I just don’t want to risk somebody else’s life.

MS YOUNES:      And I can assure you, any tapes that you may send me, I will send them to an expert for analysis. I will send them to a voice expert who will analyse everything for me and give me an expert opinion about the authenticity of the tapes or the voices on the tapes, and I will do that if you send the tapes. However I would consider your explanations and your reasons for not having provided them thus far. Do you wish to comment on that? Is there anything you would like to say?

25                        The emphasised passage was an express indication that the tapes were significant, and that without them, the claims might not be corroborated.  That was a clear indication that if the tapes were not produced, the claims might not be believed. 

26                        The appellant’s response acknowledged the significance of the tapes.  Again, in relying on the failure of the appellant to produce the tapes as a critical factor in rejecting his claims, the Tribunal did not deny the appellant procedural fairness, or fail to give him an opportunity to put arguments or give evidence on the question.  He was made aware of the importance of the issue.  The Federal Magistrate was correct to dismiss these grounds of appeal. 

27                        Ground two alleged that the Tribunal failed to consider a number of relevant considerations.  The appellant’s written submissions again set out clearly the arguments in respect of each of the matters as follows:

(a)  Assault on appellant’s brother

45.              The Tribunal did not consider the appellant’s recent information about an assault in May 2008 on the appellant’s brother shortly after a mobile phone call with the appellant (which resulted in a fractured nose, two fractured ribs, broken right hand or arm, concussion and serve bruising) as an integer of the claim, but only as “corroborative evidence”.

(b) Death of journalist

46.              The Tribunal did not consider the appellant’s recent information about “the tragic death” just afterwards, in or about May 2008 of the journalist to whom the appellant had entrusted dangerous information as an integer of the claim, but only as “corroborative evidence”.

47.              This was an error when there was evidence that the inference to be drawn was that the journalist was killed deliberately.

(c)  The cause of the injuries to the appellant

48.              The Tribunal failed to have regard to whether the puncture wound to the appellant’s abdomen, which the Tribunal accepted that he suffered, was deliberately inflicted, and, if so, whether it was of a kind likely to have been inflicted in a manner or for a cause other than the appellant claimed.

49.              This was a critical matter for the application before the Tribunal.  Few people have the raw material of a fortuitous puncture wound to the abdomen which may used [sic] as the basis of a fraudulent claim to have suffered persecution.  If the wound was of a kind probably deliberately inflicted, then it was incumbent on the Tribunal, before rejecting the claim, to consider whether there was a sufficient probability it had been suffered in a way other than claimed by the appellant.  This the Tribunal failed to do, and this led the Tribunal to discount as of no weight the medical evidence after and separately from determining to reject the appellant’s claims as false.

50.              The Tribunal accepted that the appellant had suffered a stabbing injury.  It respected the medical opinions that the very grave injury was likely deliberate and unlikely to be accidental.  Yet the Tribunal said it “does not accept that the injuries occurred in the claimed circumstances or for the claimed reasons”, without considering how likely it might be that the appellant had suffered an apparently murderous attack in other circumstances or for some other reason.  

28                        The short answer to this ground is that the three matters are not relevant considerations in the sense that the Tribunal was bound in law to take them into account: Re Peko-Wallsend  Limited; Peko  Exploration Limited; Peko-Wallsend Operations Limited and Electrolytic Zinc Company of Australasia Limited v Minister of Aboriginal Affairs and Northern Land Council (1985) 162 CLR 24 .

29                        Further, at least with respect to the assault on the appellant’s brother and the death of the journalist, the appellant’s argument does not make sense.  The complaint lies in the Tribunal describing the matters as corroborative evidence.  By so describing the factors, the Tribunal indicated that it had taken them into account.  The way in which the argument is articulated demonstrates that the Tribunal did have regard to these matters. 

30                        The explanation in oral submissions by Mr Krohn did not take the matter further.  He argued that the description of these matters as corroborative meant that the Tribunal divided the claims into two parts, namely, integers of the claim, and other matters.  He argued that the Tribunal dealt with the integers of the claim, but did not deal with the corroborative issues.  In that sense, the Tribunal failed to give consideration to them. 

31                        I do not accept this analysis.  The Tribunal treated the elements as corroborative, by which it meant matters which might support other parts of the claim.  For the purpose of determining whether the Tribunal took into account all relevant matters, the description of some of those matters as corroborative, and others as not, is not significant.  In any event, it is clear that the Tribunal gave consideration to each of the issues.

32                        The Tribunal considered the assault on the brother in the following passages:

49.     Mr Moshel told the Tribunal that the applicant had come to see him recently and had advised him that his brother had just been beaten up.  He said the applicant did not have the full details about what had happened and he needed to find out about the extent of the injuries sustained by his brother.  He said the applicant had gone to see him around April/May of 2008.  He said the incident in relation to the applicant’s brother took place around the end of May 2008 shortly after the applicant went to see Mr Moshel.

50.     Mr Moshel said that the applicant told him that he had a call from his brother but the applicant told his brother to call him back; the applicant assumed that his brother would not telephone him back using a mobile.  However, the applicant’s brother telephoned him later using a mobile phone.  Mr Moshel said that the applicant told him that in the course of the telephone conversation, they mentioned attempts to get the tapes of conversations and other information.  Mr Moshel said that the applicant told him that shortly after the telephone conversation, the brother was brutally attacked subsequent to which he was hospitalised.  The hospital records have been sent and are currently being translated.  He said that the applicant had told him that his brother had been contacted by the police previously but he had never been attacked prior to the telephone conversation he had with the applicant.

62.     The applicant gave evidence that after what had happened to his brother and to the journalist, returning to Lithuania makes him very nervous.  He said it is not only that there is a real chance of discrimination or harm, he is unsure that he would stay alive if he were to return to Lithuania.  The Tribunal indicated that the matter would be considered further.

99      On 15 July 2008, the applicant responded to the s.424A letter; he provided the following:

(e)        Translated letter from [doctor’s name], referring to an incident regarding [brother’s name] who on 9 May 2008, was attacked and beaten.  He was admitted for treatment (folios 67-68);

156.   In consideration of the evidence as a whole and given the adverse credibility finding, the Tribunal does not accept that the applicant has recorded any tapes of sensitive conversations between officials and or any other party, or that he has any recordings of any such conversations, or that he had given any such tapes to a journalist called V Rudziavicious, or that the journalist had done anything with any such recordings, or that the journalist suffered any harm (including his reported death) related to any action with the recordings, or that the applicant or any member of his family has been threatened or suffered any harm related to the recordings.

33                          The Tribunal considered the death of the journalist in the following passages:

51.     Mr Moshel gave evidence that the applicant later went to see him and told him that after the attack on the brother, the journalist who had been a major player, had been killed in a hit and run accident.  He said the announcement about the journalist’s death is being translated and would be provided to the Tribunal.  Mr Moshel stated that after the conversation between the applicant and his brother, the brother contacted the journalist.

52.     The Tribunal clarified whether there is a suggestion of a link between the conversation between the applicant’s brother and the journalist, with the journalist’s death.  Mr Moshel stated that the inference is that there is a link between the discussions with the brother, given that the journalist died following the discussion.  The Tribunal indicated that it would consider the matter further.

99.     On 15 July 2008, the applicant responded to the s.424A letter; he provided the following:

(d)        A translated “Sympathy Notices” referring to the death of the journalist, [journalist’s name]

156.   In consideration of the evidence as a whole and given the adverse credibility finding, the Tribunal does not accept that the applicant has recorded any tapes of sensitive conversations between officials and or any other party, or that he has any recordings of any such conversations, or that he had given any such tapes to a journalist called [journalist’s name], or that the journalist had done anything with any such recordings, or that the journalist suffered any harm (including his reported death) related to any action with the recordings, or that the applicant or any member of his family has been threatened or suffered any harm related to the recordings.

34                        The Tribunal considered the cause of the injuries to the appellant in the following passages: 

53.     Mr Moshel stated that there is other evidence to be provided by the applicant.  He said the applicant has a report from Dr K Myers who commented on the applicant’s injuries and how they had occurred.  The Tribunal asked about the conclusions made by Dr. Myers and Mr Moshel stated that Dr Myers concluded that the injuries sustained by the applicant are consistent with stabbing and a knife attack.  The Tribunal indicated that the report would be considered further. 

92.     The Tribunal discussed with the applicant the extracts of the medical records of the applicant noting treatment for facial contusions (dislodged teeth and a broken septum) on 2 April 200 [sic], and surgery for punctured abdomen on 10 April 2001.  The Tribunal indicated that it would further consider the weight that it would place on the medical records and or whether any treatment or surgery he may have undergone is a result of the claimed events.

100.   Dr Myers noted that the purpose of the applicant’s visit to Dr Myers was “to help interpret the nature of an injury to the abdomen”.

150.   There are clinical reports and medical evidence from Mr Val Usatoff, HepatoPancreatoBiliary Surgeon, dated 24 September 2003, and Associate Professor Kenneth Myers, dated 15 April 2008, relating to the stabbing injuries.  Dr Myers referred to the applicant’s injuries and noted that “I believe that the likelihood is that the injury was compatible with a knife wound to the abdomen which is a deliberate action and that it is unlikely that he was involved in some sort of accident relating to work or motor vehicle injury which would likely have caused more extensive damage either to the abdomen or the rest of the body … I think that the extent of the scar in the abdomen makes it extremely unlikely indeed that the injury was self inflicted.  It would take great courage to inflict an abdominal injury other than in the style of a deliberate attempt of suicide in the mature [sic] of Japanese harakiri.  He did not strike me as the sort of person who would wish to do so.  If the injury was Self-inflicted with a purpose of gaining attention and fabricating a story to allow him to leave Lithuania to come to Australia, then the injury would have been less severe and riot requiring a full length abdominal incision”.

151.   In response to the question (not by the Tribunal) “If the injuries could have been self-inflicted, is this a likely or unlikely scenario? Can you give a degree of likelihood?” Dr Meyers, responded “I believe that this is a most unlikely scenario indeed and that the injury was inflicted by another party…The injury is consistent with the account that your client has provided to me”.

35                        Consequently, in my view the Federal Magistrate was correct to dismiss this ground of appeal. 

36                        Ground four alleged that the Federal Magistrate was wrong to reject the argument that the decision of the Tribunal was so unreasonable that a reasonable Tribunal could not have so decided.  In his written submissions the appellant set out the cumulative elements of unreasonableness as follows:

55.     The Tribunal fell into jurisdictional error or failed to act within jurisdiction in that it acted so unreasonably that no reasonable Tribunal would so have acted. The following aspects of the decision, at least cumulatively, indicate such a  level of unreasonableness:

a.           The Tribunal rejected the appellant’s perfectly reasonable explanation for some of his claims not having been presented to the Minister’s Department;

b.       The Tribunal rejected the appellant’s claims of discrimination as ‘vague and lacked details”, when this claim was never put as the reason for the application for the protection visa;

c.           The Tribunal considered the appellant’s difficulty in remembering in June 2008 if he had been imprisoned on 1^st or 2^nd April 2001 as an inability to give “clear details about when that occurred, suggesting fabrication and raising doubts about the claims”, despite the elapse of time, the inherently disorientating nature of the experience and the appellant’s evidence that he was trying to erase those events from his memory.

d.       The Tribunal considered the appellant’s difficulty in remembering in June 2008 when he had received a summons in 2001 as raising “doubts about his claims and credibility generally”, despite the elapse of time, his grave injuries and loss of blood about that time, and the appellant’s evidence that he was trying to erase those events from his memory.

e.           The Tribunal would not accept the possibility that a person who the appellant trusted might under pressure breach the appellant’s confidence and give material to the people who later harmed the appellant.

f.           The Tribunal did not accept that fear might have prevented the appellant from seeking to bring out of his country as evidence to put before the Tribunal some records made by the appellant about persons in power in his country.

56.     Further, it is submitted that it was unreasonable for the Tribunal, without making investigation of the likelihood of murderous attacks in Lithuania, to conclude that the murderous attack on the appellant, supported by the medical evidence, occurred, but not for the reasons claimed by the appellant.

37                        The Tribunal found two factors which militated against acceptance of the appellant’s claim. The first was his failure to produce the tapes after numerous opportunities and after it was made clear to him, as he acknowledged, that such a failure was a very significant factor. The second was his failure to include the central elements of the claim in his original visa application.  It was the function of the Tribunal to assess the facts on these major issues, and to come to a view about the appellant’s credibility.  Having done so it cannot be said that the result falls into the class of unreasonableness as alleged.  Several of the suggestions of unreasonableness go to matters which were not central to the reasoning of the Tribunal. For example, the Tribunal’s reference to the appellant’s inability to remember dates was one amongst a number of factors to which it had regard. So too was the rejection of the evidence that the journalist would breach the appellant’s confidence because of pressure applied to him.  In the end, the critical factors – namely, the failure to produce the tapes, and the failure to persuasively explain the reason for omitting the major elements of the claim in the original application – were reasonable bases upon which the Tribunal could proceed to reject the appellant’s claims.  I therefore agree with the Federal Magistrate that the unreasonableness ground is not made out.

38                        The fifth and final ground alleged that there was a reasonable apprehension of bias on the part of the Tribunal.  This ground was said to be demonstrated by the errors made by the Tribunal articulated in all of the other grounds relied upon.  As I have not accepted any of the other grounds, this ground cannot be sustained.  Again, the Federal Magistrate was correct to reject it. 

39                        The order of the Court will be that the appeal is dismissed with costs.

Associate:

Dated:         19 November 2009